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[2002] ACTSC 10
appellant. Order setting aside the Magistrate's order of 14 May 2001; application for arbitration under the Workers' Compensation Act remitted to Magistrate Burns for determination in accordance with law;...
4 cited instruments linked from this judgment.
The Supreme Court (Ryan J) allowed the appeal, set aside the Magistrate's order, and sent the workers' compensation arbitration application back to the Magistrate for determination because factual questions remained about whether the appellant's episodes of increased pain amounted to an aggravation of fibromyalgia under the Act. The appellant was awarded costs and a costs certificate was granted (Reasons [1]–[4]; Orders).
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1,705 words · generated 29/06/2026
This is an appeal from the Magistrates Court in a workers' compensation dispute. The appellant, Mr Pero Delov, had pursued an application for arbitration under the Workers' Compensation Act 1951 (ACT) after claiming episodes of increased or exacerbated pain in the course of his employment. The Magistrate made an order on 14 May 2001 (the exact content of the Magistrate's order is not set out in these supplementary reasons). The appellant appealed to the Supreme Court of the Australian Capital Territory (No. SCA 43 of 2001). Ryan J published reasons on 20 February 2002 and, on 22 February 2002, supplied supplementary reasons and final orders. The Court set aside the Magistrate's order of 14 May 2001 and remitted the application for arbitration to Magistrate Burns for reassessment in accordance with law. The Court ordered that the respondent pay the appellant's costs of the appeal (taxed in default of agreement) and granted a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Reasons [1]–[4]; Order).
Two operative factual and legal points prompted the outcome. First, Ryan J expressly found that the evidence could permit a finding that the episodes of increased pain might amount to an aggravation of fibromyalgia within the statutory definition of "disease" in s 6(1) of the Workers' Compensation Act 1951 (ACT) (Reason [1]). Second, Ryan J concluded that material factual issues remained open, and because the Magistrate had seen and heard the witnesses, the Magistrate was in a better position to resolve those issues; accordingly the proper course was remittal rather than final determination by the appellate court (Reason [2]).
Two interlocking reasons explain the decision. The first is evidentiary: Ryan J considered the evidence sufficient to permit a finding that workplace episodes could have aggravated the appellant's fibromyalgia for the purposes of the statutory definition of "disease" (Reason [1]). That observation prevents a summary disposition against the appellant at appellate level where a finding of aggravation might be open on the evidence.
The second is procedural and doctrinal: Ryan J emphasised appellate restraint in the face of unresolved factual issues. He concluded that although counsel for the appellant submitted the appeal should be resolved finally and promptly, that policy objective was outweighed by the advantage of allowing the Magistrate who had heard the parties and witnesses to decide the outstanding factual questions (Reason [2]). The judge relied on the general principle, drawn to his attention through Commonwealth v Beattie (Evatt and Sheppard JJ), that each case of this type depends on its facts, and that factual determinations are best made by the tribunal that observed the witnesses (Reason [3]). For those reasons Ryan J set aside the Magistrate's order and remitted the arbitration application to Magistrate Burns for determination according to law, and ordered costs to the appellant (Reason [4] and Orders).
In short: the Court found the question whether workplace incidents aggravated fibromyalgia was one for fact‑finding; the primary tribunal was best placed to make those findings; therefore the matter was remitted.
Before this judgment (as reflected in the reasons) there was no novel change to statutory interpretation or appellate doctrine announced. The decision applies established appellate principles: where factual issues remain and where credibility assessment or other evaluations of evidence are material, an appellate court will generally remit to the original fact‑finder who saw the witnesses rather than make final factual determinations.
The decision reiterates that the statutory definition of "disease" in s 6(1) of the Workers' Compensation Act 1951 (ACT) may encompass an aggravation of a pre‑existing disease such as fibromyalgia if the evidence supports that finding; Ryan J held the evidence in this case could permit such a finding (Reason [1]). That is an application of established statutory construction rather than a new interpretative rule.
After this judgment the specific legal effect is procedural: the case was remitted for further factual determination by the Magistrate. The case therefore stands as an applied example of two principles: (1) evidentiary sufficiency to permit a finding of aggravation under the Workers' Compensation Act; and (2) appellate deference to primary fact‑finders where factual issues remain. It does not establish a new legal test or broaden statutory language beyond what the statute already contemplated.
Reason [1]: "I considered that the evidence ... could have amounted to an aggravation of the disease of fibromyalgia within the definition of disease in s 6(1) of the Workers' Compensation Act 1951 (ACT)."
Plain English: The judge says there is enough in the evidence to make it possible a tribunal could find the appellant's work‑related episodes made his fibromyalgia worse, and that such a worsening could qualify as a "disease" under the workers' compensation law.
Reason [2]: "There were factual issues ... left open ... the Magistrate ... remains in a better position than the Court to resolve the outstanding questions of fact ..."
Plain English: The judge explains that because the Magistrate heard the witnesses, he is in a superior position to decide any unresolved factual disputes. For that reason the appeal court should not make those factual decisions itself but should send the case back.
Reason [3]: "Each case of this kind must depend on its own facts."
Plain English: The judge repeats a fundamental point: decisions in these kinds of cases turn on the individual facts. There is no one‑size‑fits‑all rule; the specific factual record matters.
Reason [4] (Orders): Court sets aside the Magistrate's order, remits the arbitration application to Magistrate Burns, orders respondent to pay costs to the appellant, and grants a costs certificate under the Federal Proceedings (Costs) Act 1981.
Plain English: The judge gives the formal orders: the Magistrate's decision is cancelled; the matter goes back to the Magistrate for reconsideration; the appellant wins the appeal and gets costs and a costs certificate.
This judgment is directly relevant where:
In short: when an appeal turns on contested factual questions that were not finally resolved at first instance and the primary fact‑finder saw the witnesses, remittal is the appropriate course.
This judgment itself cites Commonwealth v Beattie for the general principle that each case depends on its facts (Reason [3]). The supplementary reasons contain no analysis of subsequent treatment by later courts. The reasons and orders are limited to the present appeal. There is no material in these reasons that records how later courts have treated Delov v Caldipp. To assess subsequent judicial treatment one must undertake further research of reported decisions and citations of this case in legal databases; such research is not contained in the judgment itself.
Several questions remain open from the judgment as provided:
Specific factual findings: Ryan J concluded the evidence could permit a finding of aggravation, but did not himself determine whether, on the evidence, an aggravation actually occurred; those determinations were remitted. The precise factual questions to be resolved by Magistrate Burns are not spelled out in detail in these supplementary reasons; they remain to be determined at the remitted hearing (Reason [2]).
Substance of the Magistrate's original legal view: Ryan J refers to "the view of the law taken by the learned Magistrate" as having left factual issues open, but the supplementary reasons do not set out the Magistrate's reasoning in full. The implications of that original view for statutory interpretation and its correctness remain to be addressed on remittal (Reason [2]).
Application of the statutory test for "disease" and ""aggravation"": While Ryan J observed that the evidence could permit a finding that episodes of increased pain amounted to an aggravation under s 6(1), the judgment does not set out a detailed analytical framework mapping fact patterns to the statutory categories. How far an episodic increase in pain without demonstrable pathophysiological change will count as an "aggravation" in future cases remains fact‑sensitive and open to development on remittal or in later appellate decisions (Reason [1]).
Wider appellate boundary conditions: The judgment illustrates the default position favouring remittal where factual issues are unresolved, but it leaves open the precise circumstances in which an appellate court should depart from remittal in favour of final determination (for example, where the evidence is uncontroversial or where the factual record is complete). The competing policy of expedition versus deference is noted (Reason [2]), but the judgment does not prescribe a rigid test.
Practitioners handling similar cases should therefore note three practical points from this judgment: (a) preserve the factual record and ensure contested factual issues are clearly identified for a remittal; (b) if seeking finality on appeal, be prepared to show that the factual record is complete and that remittal is unnecessary; and (c) when factual questions about "aggravation" arise under s 6(1), expect careful scrutiny and possible remittal where credibility and witness assessment are material.
Conclusion
Delov v Caldipp is a concise application of settled appellate principles to a workers' compensation dispute where the statutory question of "aggravation" of a disease (fibromyalgia) could be answered only by resolving factual disputes best determined by the primary fact‑finder. The consequence was a set‑aside and remittal, coupled with costs to the appellant. The judgment does not create new law, but it is a clear statement reinforcing that fact‑sensitive statutory questions and credibility assessments are ordinarily for the tribunal that heard the witnesses (Reasons [1]–[4]).
1. THAT the Order of the Magistrate of 14 May 2001 be set aside.
2. THAT the application for arbitration under the Workers Compensation Act 1951 be remitted to Magistrate Burns.
3. THAT the respondent pay the appellant's costs of the appeal, such costs to be taxed in default of agreement.
4. THAT a grant of a Costs Certificate under Section 6(1) of the Federal Proceedings (Costs) Act 1981 be made.
1. In this matter, in a passage from the reasons for judgment which I published on 20 February this year, to which Mr Lunney of Counsel for the appellant referred, I said I considered that the evidence in the present case permits a finding that the episodes of increased or exacerbated pain, which the appellant claimed to have experienced in the course of his work, could have amounted to an aggravation of the disease of fibromyalgia within the definition of disease in s 6(1) of the Workers' Compensation Act 1951 (ACT) ("the Act").
2. That passage indicates that there were factual issues which, I consider, were left open as a result of the view of the law taken by the learned Magistrate. Accordingly, despite the cogent submission of Mr Lunney of Counsel for the appellant that an order should be made which would have the effect of bringing this litigation to an end as quickly and as inexpensively as possible, I consider that to be outweighed by the benefit that the Magistrate had of having heard the applicant and the other witnesses. It is also my view that he remains in a better position than the Court to resolve the outstanding questions of fact to which I adverted in the paragraph just quoted.
3. It will also be remembered that, in the concluding paragraph of the same earlier reasons, I noted the observation of Evatt and Sheppard JJ in Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369, that each case of this kind must depend on its own facts. That observation applies with no less force to the present case, and it is my view that the facts on which this case must turn should be found, for the reasons that I have indicated, by the learned Magistrate.
4. Accordingly, the order of the Court will be that the order of the Magistrate of 14 May 2001 be set aside. Secondly, I order that the application for arbitration be remitted to Magistrate Burns to be determined in accordance with law. The respondent should pay the appellant's costs of the appeal, such costs to be taxed in default of agreement, and, fourthly, I shall grant a Cost Certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Delov
Caldipp Pty Limited t/as Slaven Motors [2002] ACTSC 10
(1981) 35 ALR 369
Order setting aside the Magistrate's order of 14 May 2001; application for arbitration under the Workers' Compensation Act remitted to Magistrate Burns for determination in accordance with law; respondent to pay appellant's costs of the appeal (taxed in default of agreement); grant of a Costs Certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981.